Bombay High Court
Sukumar Kallappa Kamble vs The State Of Maharashtra on 25 September, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.718 OF 2015
SUKUMAR KALLAPPA KAMBLE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Nasreen S.K.Ayubi, Advocate for the Appellant.
Mr.Arfan Sait, APP for the Respondent - State.
CORAM : SMT.V.K.TAHILRAMANI &
A. M. BADAR, JJ.
DATE : 8th SEPTEMBER 2017
JUDGMENT : (PER : A. M. BADAR, J)
1 By this appeal, the appellant / accused is challenging
the judgment and order dated 30 th September 2014 passed by the
learned Additional Sessions Judge, Ichalkaranji, District Kolhapur,
in Sessions Case No.9 of 2010, thereby convicting him of offences
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punishable under Sections 307 and 341 of the Indian Penal Code
(IPC). For the offence punishable under Section 307 of the IPC, he
is sentenced to suffer imprisonment for life so also to pay fine of
Rs.2,000/- and in default, to undergo further rigorous
imprisonment for 3 months. For the offence punishable under
Section 341 of the IPC, he is sentenced to suffer simple
imprisonment for 1 month.
2 Facts leading to the institution of the present appeal
can be summarized thus :
(a) Victim of this crime is PW1/Surekha Kamble. She is sister of
Ranjana Sukumar Kamble - wife of the appellant / accused
Sukuram Kamble. First marriage of PW1/Surekha Kamble took
place with Deepak Kamat. After death of said Deepak Kamat,
Surekha performed second marriage. PW1/Surekha Kamble was
in employment of I.D.B.I. Bank, Ichalkaranji Branch, as a peon.
She was residing at Village Dattawad, Taluka Shirol, in Kolhapur
district. She used to undertake to and fro journey Ichalkaranji.
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(b) The appellant / accused Sukumar Kallappa Kamble along
with his wife Ranjana and son Nirman used to reside at Village
Abdullat. However, after two years of his marriage, the
appellant / accused Sukumar started treating his wife Ranjana
with cruelty by suspecting her character after consuming alcohol.
Hence, Dinkar Kamble - father of Ranjana, brought her as well as
her son Nirman to her parental house at Village Dattawad.
(c) The incident in question allegedly took place on 9th February
2009. After performing her duty at the bank, PW1/Surekha
Kamble was returning by walk towards S.T. Bus Stand of
Ichalkaranji for boarding the bus for going to her house at
Dattawad. On her way to bus stop in front of hotel Amrut, the
appellant / accused Sukumar accosted her. He was armed with
scythe (koita). Then he assaulted PW1/Surekha Kamble by means
of that scythe (koita) on her head, neck, face, both upper limbs as
well as stomach. In this murderous assault, according to
prosecution case, right hand of PW1/Surekha Kamble got chopped
off and she sustained several injuries.
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(d) Police got information of the incident which was witnessed
by PW5 Krishna Dhumal and PW6 Santosh Dhatunde. Police
came on the spot. Injured PW1/Surekha Kamble was then taken
by auto rickshaw driven by PW2 Sanjay Wadagave to IGM
Hospital, Ichalkaranji. At that hospital, on 9th February 2009 itself,
her First Information Report (FIR) (Exhibit 34) came to be
recorded by PW9 Bharat Suryawanshi, P.S.I., working with Shivaji
Nagar Police Station, which resulted in registration of Crime
No.26 of 2009 for the offence punishable under Section 307 of the
IPC with Shivaji Nagar Police Station, Ichalkaranji.
(e) During the course of investigation, on 9 th February 2009
itself, in presence of PW3 Vijay Thombare - panch witness, the
spot came to be inspected and spot panchnama Exhibit 40 came to
be recorded by police. From the spot of the incident, blood
stained earth, simple earth, broken pieces of green bangles, one
handkerchief stained with blood, so also a ladies purse stained
with blood came to be seized.
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(f) At IGM Hospital, Ichalkaranji, injured PW1/Surekha Kamble
came to be medically treated by Dr.Surekha Rawal and PW7
Dr.Pradip Mane along with other medical officers. On the very
same day, husband of PW1/Surekha Kamble had taken her to
Niramay hospital, Ichalkaranji, for further treatment where she
was treated by PW8 Dr.Gurudas Banne.
(g) According to prosecution case, soon after the incident on 9 th
February 2009 itself, the appellant / accused holding blood
stained scythe (koita) and nylon bag appeared before PW10
Dattatray Kurane, P.S.I. at Shivaji Nagar Police Station,
Ichalkaranji, and disclosed the incident to him. PW10 Dattatray
Kurane, P.S.I., then called two panch witnesses and seized blood
stained scythe (koita), nylon bag, so also clothes of the appellant /
accused. He came to be arrested.
(h) On 9th February 2009 itself, in presence of panch witness
PW4 Mahesh Kabboor, police seized blood stained clothes of
PW1/Surekha Kamble.
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(i) Statement of witnesses came to be recorded and seized
articles were sent for chemical analysis. On completion of routine
investigation, the appellant / accused came to be charge-sheeted.
(j) On committal of the case, charge for offences punishable
under Sections 307 and 341 of the IPC was framed and explained
to the appellant / accused. He abjured guilt and claimed trial.
(k) In order to bring home the guilt to the appellant / accused,
prosecution has examined in all ten witnesses. Injured Surekha is
examined as PW1. The FIR lodged by her is at Exhibit 34. Sanjay
Wadagave, driver of the auto rickshaw which took injured
PW1/Surekha Kamble to IGM Hospital, Ichalkaranji, is examined
as PW2. PW3 Vijay Thombare is a panch witness to spot
panchnama Exhibit 40. PW4 Mahesh Kabboor is a panch witness
to seizure of clothes of PW1/Surekha Kamble. PW5 Krishna
Dhumal and PW6 Santosh Dhatunde are eye witnesses to the
crime in question. However, PW5 Krishna Dhumal turned hostile
to prosecution. PW7 Dr.Pradip Mane, Medical Officer with IGM
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Hospital, Ichalkaranji, proved injury certificate Exhibit 56 and
other documents of medical treatment given to PW1/Surekha
Kamble at that hospital. PW8 Dr.Gurudas Banne proved medical
case papers of treatment of PW1/Surekha Kamble at Niramay
hospital, Ichalkaranji, and deposed about her medical condition
and injuries suffered by her. PW9 Bharat Suryawanshi, P.S.I, had
recorded FIR Exhibit 34 and deposed about written information
given to the police station by IGM hospital. PW10 Dattatray
Kurane, P.S.I., conducted further investigation of the crime in
question.
(l) Defence of the appellant / accused, as seen from line of
cross-examination of prosecution witnesses as well as from his
statement under Section 313 of the Code of Criminal Procedure, is
that of total denial. According to the appellant / accused, he is
falsely implicated in the crime in question, as injured
PW1/Surekha Kamble insisted him to have illicit relations with
her, but he refused to oblige her. It is further contended by the
defence that the prosecuting party was harbouring the grudge
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against him and hence he is falsely implicated in the crime in
question.
3 We have heard Ms.Nasreen Ayubi, the learned advocate
appearing for the appellant / accused. She vehemently argued that
evidence on record does not establish commission of offence alleged
against the appellant / accused. The incident took place at a
populous locality of Ichalkaranji, which is said to have been
witnessed by many people. In submission of the learned advocate
for the appellant / accused, PW5 Krishna Dhumal has not supported
the case of prosecution and cross-examination of PW6 Santosh
Dhatunde reveals that he was having a stall on the side of the road
and because of running traffic he was not in a position to witness the
incident in question. The learned advocate further argued that
evidence on record and particularly that of PW1/Surekha Kamble
indicates that she as well as her family members were harbouring
grudge against the appellant / accused, and therefore, he is falsely
implicated in the crime in question. Hence, the appellant / accused
deserves benefit of doubt. As against this, the learned APP
supported the impugned judgment and order by contending that
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evidence on prosecution is clear, consistent and cogent. The learned
APP further argued that this is a second incident of assault on
PW1/Surekha Kamble by the appellant / accused. In past, in the
year 2004, the appellant / accused assaulted PW1/Surekha Kamble,
which ultimately resulted in conviction for the offence punishable
under Section 324 of the IPC vide judgment and order dated 11 th
June 2009 passed by the learned JMFC, Kurundwad, in R.C.C. No.13
of 2014.
4 We have carefully considered the rival submissions and
also perused record and proceedings including deposition of
witnesses and documentary evidence adduced on record. At the
outset let us examine whether the prosecution has established that
the appellant / accused, at about 5.15 p.m. of 9 th February 2009,
in front of Amrut hotel, Ichalkaranji, after wrongfully restraining
her, intentionally assaulted the PW1 / Surekha Kamble by giving
blows of scythe (koita) on her head, stomach, hands and neck
with an intention or knowledge and under such circumstances,
that if by the said act, he had caused death of said PW1 / Surekha
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Kamble, he would have been guilty of the offence for murder. The
case of the prosecution on this aspect primarily hinges on
testimony of PW1 / Surekha Kamble who is victim of the alleged
offence. She is an injured witness. The incident in question took
place when she was undertaking return journey from her work
place i.e. IDBI Bank, Ichalkaranji, to the S.T.Bus stand for going to
her place of residence i.e. Village Dattawad.
5 The law regarding appreciation of evidence of an
injured witness is explained by the Hon'ble Apex Court in the
1. The ratio which
matter of Bonkaya V/s. State of Maharashtra
can be culled out from this ruling is to the effect that evidence of
injured eye witness cannot be discarded in toto on the ground of
inimical disposition towards the accused or improbabilities of
narrating the details of actual attack. His evidence has to be
scrutinized with caution taking into account the factum of
previous enmity and tenancy to exaggerate. It is well settled that
a witness who is a natural one and is the only possible eye witness
in the circumstances of a case cannot be said to be interested. A
1 1995 (2) SCC 447
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witness is interested only when he derives some benefit from the
result of the litigation. If evidence of injured witness if otherwise
reliable and trustworthy then it carries more weight and cannot be
thrown away merely because it is not corroborated by any
independent witness. Little discrepancies cannot make evidence
of injured witness unacceptable, when his evidence as a whole has
a ring of truth. Let us therefore scrutinize evidence of injured
PW1 / Surekha Kamble on th touchstone of these principles.
6 In the case in hand, as stated in foregoing paragraph,
it is defence of the appellant / accused that he is falsely
implicated in the crime in question because the injured First
Informant / PW1 / Surekha Kamble and her family members were
harbouring grudge against him and they were on inimical terms
with him. So far as the incident is concerned, it is in evidence of
PW1 / Surekha Kamble that while undertaking return journey to
S.T.Bus stand of Ichalkaranji, at about 5.15 p.m. on 9 th February
2009, in front of hotel Amrut, appellant / accused who is husband
of her younger sister Ranjana came holding a scythe (koita) and
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started assaulting her by the said weapon. This witness further
stated that blows of scythe (koita) given by the appellant /
accused landed on her head, cheek, neck, both hands, stomach
and left leg. As a result of the blows of scythe (koita), her right
hand was chopped off from the wrist. She also suffered injuries to
her fingers and palms of left hand. PW1 / Surekha Kamble
described the manner in which blow on her stomach was given by
the appellant / accused by stating that after giving blow of scythe
(koita) on left side of her stomach, the appellant / accused pulled
the scythe (koita) downwards. This injured witness further added
that because of this assault, she suffered bleeding injuries.
7 Chief examination of injured PW1 / Surekha Kamble
gives motive for the assault on her. This witness stated that the
appellant / accused Sukumar - husband of her sister Ranjana,
was in habit of drinking liquor and he used to suspect character of
Ranjana. PW1 / Surekha Kamble further stated that the appellant
/ accused used to beat Ranjana, and therefore, her father brought
Ranjana and her son Nirman to parental house at Dattawad.
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However, the appellant / accused was thinking that it was PW1 /
Surekha Kamble who was not sending his wife Ranjana and his
son Nirman to his house at Village Abdullat. Therefore, he was
angry. PW1 / Surekha Kamble further stated that because of this
reason, even in past, and particularly in the year 2004, the
appellant / accused assaulted her by means of a sickle on her
neck and back which resulted in his conviction by the competent
court. This is the eye witness account, with motive for the assault,
given by PW1 / Surekha Kamble. She was subjected to searching
and lengthy cross-examination by the learned advocate appearing
for the appellant / accused, in order to bring on record that he is
falsely implicated in the crime in question. The defence has put
suggestion to her that after death of her husband Deepak Kamat,
PW1 / Surekha Kamble insisted the appellant / accused to keep
sexual relations with her and as the appellant / accused declined
to satisfy her physical desire, he is falsely implicated in the crime
in question. PW1 / Surekha Kamble candidly denied this
suggestion. Then, it was suggested to her that she was having
illicit relations with Gopinath Kallappa Kamble even during
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subsistence of her marriage with Deepak Kamat and for
continuing such illicit relations, she committed murder of her
husband Deepak Kamat. Informant PW1 / Surekha Kamble
denied these suggestions also, but accepted the fact that
subsequent to death of her husband Deepak Kamat, she married
Gopinath Kamble in the year 2001 itself. It is, thus, clear that
PW1 / Surekha Kamble, the incident in question, was a married
lady. Therefore, absurd suggestions given to her that she insisted
the appellant / accused to satisfy her physical desire, as such,
does not deserve even a moment's consideration. Moreover, this is
a case of a single accused and a single victim. Injured PW1 /
Surekha Kamble had suffered serious injuries in the assault. In
such a situation, it cannot be believed that she would spare her
real culprit and rope in the appellant / accused, who is her near
relative, being husband of her younger sister, and that too for a
flimsy reason, as suggested by the defence.
8 From cross-examination of PW1 / Surekha Kamble, it
is brought on record by the defence that she saw the appellant /
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accused approaching her when he was two feet away from her.
Similarly, it is further brought on record from cross-examination of
PW1 / Surekha Kamble that the incident of assault on her
continued for a period of about two minutes. This material
brought on record from cross-examination of PW1 / Surekha
Kamble, as such, makes it clear that she had an ample opportunity
to see her assailant approaching her as well as during the course
of assault on her. The incident took place in the day light. As
such, question of mistaken identity of the assailant does not arise.
Ultimately, the appellant / accused was very much know to this
witness and he was closely related to her.
9 Evidence of PW1 / Surekha Kamble further goes to
show that at the time of the incident in question, she was wearing
white saree with blue border as well as white petticoat. As per her
version, she was also wearing a blouse and green bangles. While
in the dock, she identified her clothes as well as pieces of green
bangles. She has also identified the weapon of the offence. Over
all scrutiny of evidence of PW1 / Surekha Kamble, who is an
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injured witness, does not allow me to hold that she is shielding
the real culprit, particularly when she has suffered serious injuries
in this murderous assault. She is a natural witness to the incident
in question being injured in the said incident and there is no
possibility of her leaving the real assailant and substitute him with
an innocent person. Evidence of injured PW1 / Surekha Kamble is
clear, cogent and consistent with Exhibit 34 FIR lodged by her
with promptitude and that too, on the date of the incident itself
i.e. on 9th February 2009. Very insignificant omissions from her
version are of no use to jettison her otherwise truthful version
regarding the incident in question. However, at this stage,
without putting explicit reliance on her testimony, let us examine
if evidence of PW1 / Surekha Kamble is gaining corroboration
from other evidence adduced on record by the prosecution.
10 As per prosecution case, PW5 Krishna Dhumal and
PW6 Santosh Dhatunde are eye witnesses to the incident in
question. PW5 Krishna Dhumal has not supported the case of
prosecution. Let us therefore consider what PW6 Santosh
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Dhatunde says about the incident in question. He is owner of the
ready made clothes stall at the footpath adjacent to Jai Hind
Mandal. His stall was located opposite to hotel Amrut. The
incident in question took place in front of hotel Amrut and his
ready made clothes stall belonging to PW6 Santosh Dhatunde.
Evidence of this witness may be criticized by branding him as a
chance witness. In the matter of Sachchey Lal Tiwari vs. State
of Uttar Pradesh 2 the Hon'ble Apex Court while considering
evidentiary value of the chance witness in case of murder which
had taken place in a street and when a passer by had deposed that
he had witnessed the incident, has observed as under :
"If the offence is committed in a street only a passer
by will be the witness. His evidence cannot be
brushed aside lightly or viewed with a suspicion on
the ground that he was a mere chance witness.
However, there must be an explanation for his
presence there."
11 In Thangaiya
V.s State of Tamil Nadu 3 similar
observations are made by the Hon'ble Apex Court. In the matter of
2 (2004) 11 SCC 410
3 (2005) 9 SCC 650
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Jarnail Singh and Others vs. State of Punjab 4 the Hon'ble Apex
Court has observed that the expression "Chance Witness" is
borrowed from countries where the place home is considered as
castle and everyone must have an explanation for his presence
elsewhere or in another man's castle. The Hon'ble Apex Court
has cautioned that it is quite unsuitable an expression in a country
like India where people are less formal and more casual, at any
rate, in the manner of explaining their presence. Thus, at the
most, what is expected from a chance witness is adequate
explanation to his presence at the place of occurrence. Keeping in
mind this aspect, let us examine evidence of PW6 Santosh
Dhatunde.
12 Evidence of PW6 Santosh Dhatunde, that he is owner
of ready made clothes stall situated on the footpath, opposite to
Amrut hotel on road of Ichalkaranji, proceeding towards S.T.Bus
stand, is not at all shattered in the cross-examination. This
witness vouched that he was very much present at his stall at
about 5.15 p.m. on the day of the incident. There is nothing in
4 (2009) 9 SCC 711
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cross-examination of this witness to disbelieve this version. As
such, PW6 Santosh Dhatunde, being owner of the ready made
clothes stall, situated at the spot of the incident, has satisfactorily
explained his presence at the place of the occurrence, at the time
of the incident. It appears that though this witness has stated that
he is in a position to identify the assailant, the learned APP, while
conducting chief examination, has not pointed out the appellant /
accused to this witness in order to enable this witness to identify
him. Be that as it may, this witness has stated the manner in
which the incident in question took place. He stated that upon
hearing shouts he saw one man assaulting a woman by scythe
(koita). PW6 Santosh Dhatunde further deposed that because of
blows of the said weapon, right hand of the victim woman was cut
off from the wrist and she sustained injuries on her neck. PW6
Santosh Dhatunde has duly identified PW1/Surekha Kamble as
the woman who had suffered murderous assault on the day of the
incident. Thus, evidence of PW6 Santosh Dhatunde duly
corroborates version of PW1/Surekha Kamble and establishes that
PW1/Surekha Kamble was assaulted on the day of the incident by
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a dangerous weapon. As the appellant / accused was closely
related to her and as there was ample opportunity for
PW1/Surekha Kamble to identify her assailant, her evidence that
it was the appellant / accused who assaulted her cannot be
disbelieved, in the wake of eye witness account of the incident
given by PW6 Santosh Dhatunde.
13 Version of PW1/Surekha Kamble in respect of murderous
assault on her is gaining further corroboration from the situation
prevalent on the spot of occurrence coming on record through
evidence of PW3 Vijay Thombare - a panch witness. This witness
deposed that he had inspected the spot of the incident and found
blood lying on the spot. This witness testified that pieces of green
bangles, one ladies handkerchief and one ladies purse was also lying
on the spot. As per version of this panch witness, police seized blood
stained soil, simple soil, broken pieces of bangles, blood stained
handkerchief and ladies purse by preparing spot panchnama Exhibit
40. Searching cross-examination of this witness could not cast a
shadow of doubt on his clear and cogent testimony which is gaining
corroboration from contemporaneous spot panchnama Exhibit 40.
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The spot panchnama shows that there was pool of blood on the spot
and size of that pool of blood was 6 feet x 6 feet. The spot
panchnama also reflects that pieces of broken bangles, blood stained
handkerchief and ladies purse were lying on the spot. Recitals in the
spot panchnama coupled with version of PW3 Vijay Thombare goes
to show that police seized those articles from the spot and sealed
them with wax seal.
14 This evidence adduced by the prosecution fully
corroborates the testimony of injured PW1/Surekha Kamble to the
effect that she was assaulted by means of scythe (koita) by the
appellant / accused causing severe bleeding injuries to her. On
the day of the incident i.e. on 9 th February 2009 itself, as seen
from evidence of PW4 Mahesh Kabboor - a panch witness, blood
stained saree, petticoat and blouse belonging to injured
PW1/Surekha Kamble came to be seized while seizure panchnama
Exhibit 43. This witness duly identified those clothes during the
course of cross-examination by the defence. Panchnama at Exhibit
43 drawn on 9th March 2009 duly corroborates version of this
witness. This oral as well as documentary evidence clearly
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corroborates version of the injured PW1/Surekha Kamble to the
effect that she was assaulted by the appellant / accused by means
of scythe (koita) causing bleeding wounds to her.
15 Now let us examine what was the condition of injured
PW1/Surekha Kamble after sustaining murderous assault on 9 th
February 2009. PW1/Surekha Kamble was taken to IGM hospital
at Ichalkaranji from the spot of the incident by PW2 Sanjay
Wadagave in the auto rickshaw driven by him. At the said
hospital, PW1/Surekha Kamble was medically examined and
treated by Dr.Surekha Rawal, Medical Officer, as well as PW7
Dr.Pradip Mane, who was accompanying Dr.Surekha Rawal.
Evidence of PW7 Dr.Pradip Mane shows that upon examination of
PW1/Surekha Kamble on 9th February 2009 itself, following
injuries were noticed on her person :
i) Incise wound (IW) right temporal region,
oblique 4' x 2' bone deep, bleeding present, fracture
temporal bone.
ii) Incise wound (IW) right temporal region, 1'
above would No.1 size 2'' x 1'' scalp deep, bleeding
present oblique.
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iii) Incise wound (IW) right side of chest oblique
extending from 6th and 7th rib axillary line upwards
size 4'' x 1'' muscle deep, bleeding present.
iv) Incise wound (IW) right elbow, size 6''x4'' muscle
deep, bleeding present.
v) Incise wound (IW) right hand cut from wrist
separated amputed completely accidentally.
vi) Incise wound (IW) left hand, ring finger cut at 1 st
interphalangeal joint, bleeding present, hanging
from joint.
vii) Incise wound (IW) left thigh buttock oblique
size 4'' x 2'', muscle deep, bleeding present.
viii) Incise wound (IW) left wrist horizontal size
2''x1'' skin deep, bleeding present.
ix) Incise wound (IW) left forearm just above No.8
3''x1'', muscle deep, bleeding present.
x) Minor lacerations over left arm 3 in numbers size
1 cm x 1 cm red in colour.
xi) Deep laceration over left arm 1''x1'' red.
xii) Incise wound (IW) left anterior triangle of neck
size ½ '' x ¼ '', skin deep, bleeding present.
xiii) Incise wound (IW) left cheek "" (Horizontal V)
shaped size 3''x2'' muscle deep bleeding present
xiv) Incise wound (IW) left lumbar region size 6''x4''
small intestine out.
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xv) Incise wound (IW) left illiac region, oblique size
4''x2'' muscle deep, bleeding present
xvi)Incise wound (IW) left thigh 4''x1'' muscle deep,
oblique, bleeding present.
This witness has duly proved Medico Legal Certificate Exhibit 56
which also reflected injuries suffered by PW1/Surekha Kamble.
Document at Exhibit 57 proved by this witness comprises of
papers of medical treatment of PW1/Surekha Kamble. These
documents shows general condition of the injured during the
course of medical treatment. In cross-examination, an attempt
was made to demonstrate that this witness had not personally
examined PW1/Surekha Kamble. However, in cross-examination,
PW7 Dr.Pradip Mane has categorically stated that he was on duty
and present at the time of medical treatment of injured
PW1/Surekha Kamble. From evidence of this witness, it is seen
that though IGM hospital has advised that PW1/Surekha Kamble
be taken to higher center for further management, her relatives
took her to Niramay hospital at Ichalkaranji.
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16 PW8 Dr.Gurudas Banne then examined PW1/Surekha
Kamble at Niramay hospital on her admission to that hospital at
about 11.05 p.m. on 9th February 2009. He found her to be
suffering from hypo-volumic shock due to excessive bleeding. Her
Blood pressure was found decreased to 110/70 and pulse rate was
96 per minute. As deposed by this witness, two bottles of blood
and IV fluid were required to be administered to injured
PW1/Surekha Kamble. PW8 Dr.Gurudas Banne testified that
C.T.Scan and other radiological investigations were carried on and
it was found that PW1/Surekha Kamble had suffered depressed
fracture of right parietal bone extending to squamous part of
temporal bone. As her general condition was deteriorating, she
was taken on mechanical ventilator and for raising her blood
pressure. Ionotropic support was given to her. She was required
to be put on ventilator on her admission up to 13 th February 2009
and thereafter her general condition started improving. This
evidence certainly demonstrates the impact of murderous assault
on injured PW1 / Surekha Kamble and her vulnerable condition
after sustaining injuries.
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17 Evidence of PW7 Dr.Pradip Mane and that of PW8
Dr.Gurudas Banne, as such, reveals serious wounds suffered by
injured PW1 / Surekha Kamble in the incident dated 9 th February
2009. Perusal of evidence of both these witnesses coupled with
contemporaneous medical certificate shows that infact, injured
PW1 / Surekha Kamble had suffered injuries all over her body and
prominently on her head, face, both upper extremities, chest as
well as back and buttocks. The number of wounds found on
person of PW1 / Surekha Kamble goes to show that she must have
sustained atleast 16 blows of scythe (koita) at the hands of the
appellant / accused. Her evidence, as such, is gaining
corroboration on material particulars from truthful and
trustworthy evidence of PW7 Dr.Pradip Mane and PW8
Dr.Gurudas Banne.
18 Now let us examine, how, according to the prosecution
case, the appellant / accused came to be apprehended. For that
purpose evidence of PW10 Dattatray Kurane, P.S.I. attached to
Shivaji Nagar Police Station, is material. This witness has deposed
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that on 9th February 2009, on the basis of FIR of PW1 / Surekha
Kamble, he registered Crime No.26 of 2009, and subsequently, the
appellant / accused came to the police station with blood stained
clothes on his person. At that time, he was holding scythe (koita)
as well as nylon bag. The confessional statement of the
appellant / accused then made to this witness cannot be
considered as a piece of admissible evidence. However,
appearance of the appellant / accused soon after the incident at
the Police station and before PW10 Dattatray Kurane while armed
with the weapon of offence having blood stained clothes on his
person indicates post event conduct of the appellant / accused.
This evidence is admissible as per provisions of Section 8 of the
Evidence Act, as such conduct of the accused is as a result of the
incident in question. On this aspect, evidence of PW10 Dattatray
Kurane is not at all shattered in the cross-examination. This
witness seized scythe (koita), nylon bag, as well as clothes which
were on person of the appellant / accused by preparing seizure
panchnama Exhibit 83. Evidence of this witness shows that seized
articles were duly sealed with wax seal.
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19 Article seized from the spot vide spot panchnama
Exhibit 40, clothes of injured PW1 / Surekha Kamble seized as per
seizure panchnama Exhibit 43, weapon of the offence, nylon bag
and clothes worn by the appellant / accused at the time when he
approached the police station were sent for chemical analysis.
Evidence on record does not indicate any possibility of tampering
these articles during the course of transmission to the Forensic
Laboratory. They were duly sealed and Chemical Analyser's
Report Exhibit 87 shows that they were received by the Forensic
Laboratory in a sealed condition. Chemical Analyser's report at
Exhibit 89C shows that blood of injured PW1 / Surekha Kamble
was of "B" group. She is a person who profusely bled after the
incident. Nature of injuries suffered by her and recitals in spot
panchnama are significant on this aspect. Perusal of Chemical
Analyser's Report at Exhibit 87C shows that human blood of "B"
group was found on articles seized from the spot i.e. broken pieces
of glass bangles, handkerchief, as well as ladies purse. Similarly,
the blood of same group was found on saree, petticoat and blouse
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worn by injured PW1 / Surekha Kamble at the time of the
incident. Shirt and banyan of the appellant / accused was also
found to be stained by blood of "B" group. Human blood was
found on his full pant as well as scythe (koita) seized from him.
Nylon bag seized from the appellant / accused was also found to
be having stains of blood of "B" group. Witnesses examined by
the prosecution have identified all these articles. This forensic
evidence, as such, fully supports case of the prosecution to the
effect that on 9th February 2009, the appellant / accused had
assaulted injured PW1 / Surekha Kamble by means of scythe
(koita) and incriminates the appellant / accused.
20 Now let us examine whether the appellant / accused
by his act of injuring PW1 / Surekha Kamble by means of scythe
(koita) has committed the offence punishable under Section 307
of the IPC after wrongfully restraining her on the public road at
Ichalkaranji.
21 One circumstance brought on record by the
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prosecution is relevant to determine whether the act of the
appellant / accused amounts to the offence punishable under
Section 307 of the IPC. The prosecution has placed on record and
proved the judgment and order passed by the learned JMFC,
Kurundwad, in R.C.C. No.13 of 2004 whereby the appellant /
accused was found to be guilty of the offence punishable under
Section 324 of the IPC and was sentenced to suffer rigorous
imprisonment for 1 year apart from imposition of fine of
Rs.2,000/-, in default to undergo further rigorous imprisonment
for 1 month. This prosecution was launched as, on 13 th February
2004, in a similar manner the appellant / accused had assaulted
the injured PW1 / Surekha Kamble. Perusal of the judgment and
order in R.C.C.No.13 of 2004 shows that PW1 / Surekha Kamble,
in that assault by the appellant / accused, had sustained injury to
her back, neck, as well as on palm. Though the injuries were on
neck of the informant by a sharp edged weapon, the learned
Magistrate concluded that the appellant / accused had not
intentionally assaulted PW1 / Surekha Kamble. Causing wounds
to PW1 / Surekha Kamble in past, by using sharp edged weapon,
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prima facie, depicts the intention of the appellant / accused in
committing the instant crime. This is one of the factor to gather
intention of the appellant / accused which is a mental state of
mind and for which no tangible evidence can be produced.
22 As the question which falls for determination is
whether the assault on PW1 / Surekha Kamble by the appellant /
accused was for committing murder of PW1 / Surekha Kamble,
one will have to take brief resume of distinction between murder
and culpable homicide not amounting to murder. Culpable
homicide is the genus and murder is its specie. The Indian Penal
Code practically recognizes three degrees of culpable homicide.
Culpable homicide of the first degree is the gravest form which is
defined as "murder" vide Section 300 of the IPC. The second may
be termed as "culpable homicide of second degree" which is made
punishable under first part of Section 304 of the IPC. Lowest type
of culpable homicide is the "culpable homicide of third degree"
made punishable under the second part of Section 304 of the IPC.
For making out the offence of murder punishable under Section
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302 of the IPC, the prosecution is firstly required to establish that
a bodily injury is present on the victim. Secondly, the prosecution
is required to establish nature and size of the injury on the victim.
Then, it must prove that there was an intention to inflict that
particular injury by adducing clear and cogent evidence to the
effect that the said injury was not accidental or unintentional or
that some other kind of injury was intended. Lastly, the
prosecution has to establish that the injury so caused was
sufficient to cause death in the ordinary course of nature. If all
these factors are established, then the offence defined under
Section 300 and punishable under Section 302 is made out. The
offence punishable under Section 307 is made out when the
accused had the intention to commit murder and in pursuance of
that intention, does any overt act towards commission of murder.
In order to establish the offence punishable under Section 307 of
the IPC, the prosecution is enjoined to establish the intention or
knowledge of committing murder and doing of an act towards it.
Thus, Section 307 of the IPC contemplates intention or knowledge
and not the consequence of the actual act done for the purpose of
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carrying out the intention. Requisite intention coupled with some
overt act is sufficient to constitute the offence punishable under
Section 307 of the IPC.
23 Evidence of the prosecution discussed in foregoing
paragraphs and particularly that of injured PW1 / Surekha
Kamble, PW7 Dr.Pradip Mane and PW8 Dr.Gurudas Banne
establishes existence of bodily injuries as well as nature and extent
of those injuries on person of PW1 / Surekha Kamble. Intention
of the appellant / accused to cause those injuries can be inferred
by the type of weapon used i.e. heavy sharp edged scythe (koita),
large number of blows given by him by using sharp edge of that
weapon to PW1 / Surekha Kamble, force with which those blows
were given and parts of the body of the victim chosen for inflicting
blows. Force used for giving blows is reflected from extensive
damage caused to injured PW1 / Surekha Kamble by blows given
by the appellant / accused by means of sharp edged weapon.
Medical case papers at Exhibit 56 shows extensive damage caused
to the injured because of successive blows by a sharp edged
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weapon. Her right hand palm was literally chopped off from the
wrist. Several blows were given to the victim on her head, neck,
face, chest and back, apart from limbs. This led to profuse
bleeding causing hypo-volumic shock to injured PW1 / Surekha
Kamble. Spot panchnama reflects pool of blood of size 6 feet x 6
feet at the spot of the incident. The injured was required to put
on ventilator immediately for about five days.
24 It is, thus, clear that, the appellant / accused gave
successive blows of sharp edged weapon to injured PW1 /
Surekha Kamble with such intention and knowledge, and under
such circumstances that if her death had occurred, the offence
would have amounted to murder. The act of the appellant /
accused in giving successive blows by a sharp edged weapon to
PW1 / Surekha Kamble and that too on vital parts of her body,
was of such a nature as would have caused her death in the usual
course of events. Fortunately for injured PW1 / Surekha Kamble,
timely medical help by PW7 Dr.Pradip Mane and PW8 Dr.Gurudas
Banne, prevented result of her death, which the appellant /
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accused desired. This is evident even from the contemporaneous
medical record at Exhibit 56 reflecting very bad general condition
of PW1 / Surekha Kamble after the incident dated 9 th February
2009 for considerably long period of time.
25 Thus, with clear, cogent, consistent and trustworthy
evidence adduced by the prosecution, it is proved on record that
after wrongfully restraining injured PW1 / Surekha Kamble, the
appellant / accused has attempted to commit her murder.
Therefore, no infirmity can be found with his conviction for
offences punishable under Section 307 and 341 of the IPC.
26 The appellant / accused is sentenced to suffer life
imprisonment for the offence punishable under Section 307 of the
IPC. The question is whether, this sentence can be termed as
appropriate or excessive. Some relevant factors are required to be
kept in mind before awarding sentence to the accused on proof of
charges leveled against him. Such factors are illustrative and not
exhaustive, as each case is required to be examined on its own
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facts. The punishment is required to be proportionate to the
proved offence. Relevant factors for determining proportionality
in sentences are motive or previous enmity, intention / knowledge
of the accused while committing the offence, the nature and size
of weapon used while committing the offence, the criminal
background and adverse history of the accused, the general
conduct and behaviour of the accused, relation of the accused
with the victim and whether the incident occurred within the
family or close relations etc. The gravity, dimension and nature of
injury, helplessness of the victim, degree of criminality shown by
the accused, are also relevant factors while imposing sentence. In
the case in hand, the appellant / accused had accosted his own
sister-in-law on main road of the town and gave several blows by
sharp edged weapon on her mercilessly. She suffered 16 serious
wounds including loss of her right palm in the incident. She is
permanently incapacitated to enjoy her life to the fullest extent
because of brutal act of the appellant / accused. In such a
situation, it cannot be said that the proportionality is not
maintained by the learned trial court in imposing the sentence.
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The sentence imposed on the appellant / accused for proved
offences is appropriate and cannot be faulted.
27 In the result, the appeal is devoid of merits, and
therefore, the same is dismissed.
(A. M. BADAR, J.) (SMT.V.K.TAHILRAMANI, J.)
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